Condom case reaffirms the ability to make meaningful choices

ANGELA CAMPBELL

Contributed to The Globe and
Mail

Published
Friday, Mar. 07 2014

Friday’s judgment by the Supreme Court in R. v. Hutchinson has called
upon our judiciary to delineate further the parameters and potential
limits of consent to sex. What sorts of deceitful behaviours might
preclude or vitiate consent? Withholding information about a
sexually-transmitted infection? Concealing or lying about one’s
identity? What about, as in this particular case, sabotaging a partner’s
birth control?

We should be wary of legal developments that permit the incursion of
the criminal law into our intimate, private lives. But conduct that
impairs one’s ability to choose meaningfully whether to have sex
warrants a criminal justice response. This is especially true where such
conduct results in sexual activity that produces a risk of serious
bodily harm.

This threshold of harm was met in the case on which the Supreme Court
just rendered judgment. The complainant faced an unwanted pregnancy, its
termination and associated emotional and physical health implications,
as a result of her ex-partner’s covert decision to poke holes in her
condoms before they had sex. Her consent was to protected sex, not what
actually transpired. In the absence of consent, then, the sex that
occurred was illegal.

Exercising restraint is crucial in the extension of the criminal law
to new contexts. At the same time, it is also wrong to resist criminal
law’s invocation only for fear of the slippery slope phenomenon.
Understandably, criminalizing hole-piercing in condoms leads to disquiet
about what other types of deceit or secrecy within intimate
relationships might qualify as sexual assault. Will fabrications about
sterility or “being on the pill” see deceivers – whether male or female
– prosecuted when unwanted pregnancies result?

The concern is not entirely misplaced, but caution about drawing
parallels is due. There are critical differences between surreptitious
conduct that exposes a woman to sexually-transmitted infection and an
unwanted pregnancy and a lie that might lead to unexpected parenthood
and child support obligations. The latter might, arguably, qualify as
harms, but their nature and quality can’t be simply analogized with the
consequences that the complainant in today’s judgment shouldered. It’s
far from clear, then, that criminal law’s reach should extend to all
hypotheticals that bear some resemblance with this case.

Criminal law skeptics would also be right to ask whether there’s a
place for the private law, or civil justice, in cases such as these.
Rather than mobilizing the forces of the state’s law enforcement
mechanisms, couldn’t we leave it to individual complainants to bring
suit for the injury a wrongdoer has caused her?

Civil suits may indeed be appropriate and logical in some cases
involving misrepresentations associated with sex. In some cases, they
would allow for redress to be acquired without drawing on law’s bluntest
– and most overused – instrument, the criminal law.

But despite its possible merits, civil justice alone cannot do the
work of accounting for the harms occasioned by deceit that curtails the
possibility of consent. Civil actions shift the burden of remedying
those harms entirely to a single person who may not have the means or
wherewithal to take this on. Furthermore, it would be wrong to relegate
entirely to private actors responsibility for addressing conduct that
denies a person of the ability to consent meaningfully and willfully to
sex. The issue here is one of public concern and the state inevitably
has a role to play.

Behaviour that deprives a person of her entitlement to consent to sex
is rightfully understood as criminal sexual assault. That outcome is
measured where this behaviour exposes a person to serious harms, and
where it undermines her autonomy and freedom to make informed,
meaningful choices about sex.

Angela Campbell is a professor at McGill University’s Faculty of
Law. She is the author of Sister Wives, Surrogates and Sex Workers:
Outlaws by Choice? (Ashgate: 2013).

Here we go again, more promotion of hatred towards men by Angela
Campbell, a law professor, you uses the subterfuge of legal education to
promote hatred towards men.

Her article is riddled with bias. According to Angela Campbell refers to
the victims by only one gender female. It suggests that men can't be and
or should not be victims of sexual assault by a woman.

In particular, her article completely avoids the issue that in Canada ,
no man has ever succeeded or is likely to succeed in bringing a charge
of sexual assault on the basis of a woman fraudulently obtaining sex,
while claiming the sex wont produce a child.

These man haters refer to men as though they have no other purpose in
life than to be sperm donors and or support payors.

The tragedy is our corrupt police and feminist courts go along with
these notions that have effectively destroyed legal rights for children
and their fathers.

www.OttawaMensCentre.com

Behaviour that deprives a person of her entitlement to consent to sex is
rightfully understood as criminal sexual assault. That outcome is
measured where this behaviour exposes a person to serious harms, and
where it undermines her autonomy and freedom to make informed,
meaningful choices about sex.